NEW HAMPSHIRE RULES OF PROFESSIONAL CONDUCT

INFORMATION ABOUT LEGAL SERVICES

Rule 7.3. Direct Contact With Prospective Clients

(a) A lawyer shall not
initiate, by in-person, live voice, recorded or other real-time means, contact
with a prospective client for the purpose of obtaining professional employment,
unless the person contacted:

(1) is a lawyer;

(2) has a family,
close personal, or prior professional relationship with the lawyer;

(3) is an employee,
agent, or representative of a business, non-profit or governmentalorganization not known to be in need of
legal services in a particular matter, and the lawyer seeks to provide services
on behalf of the organization;or

(4) is an individual
who regularly requires legal services in a commercial context and is not known
to be in need of legal services in a particular matter.

(b) A lawyer shall not
communicate or knowingly permit any communication to a prospective client for
the purpose of obtaining professional employment if:

(1) the prospective
client has made known to the lawyer a desire not to receive communications from
the lawyer;

(2) the communication
involves coercion, duress or harassment; or

(3) the lawyer knows or reasonably should know that the physical, mental, or
emotional state of the prospective client is such that there is a substantial
potential that the person cannot exercise reasonable judgment in employing a
lawyer.

(c) Every written,
recorded or electronic communication from a lawyer soliciting professional
employment from a prospective client known to be in need of legal services in a
particular matter shall include the word "Advertising" on the outside
envelope, if any, and at the beginning and ending of any recorded or electronic
communication, unless the recipient of the communication is a person specified
in subsection (a).

(d) The following types
of direct contact with prospective clients shall be exempt from subsection (a):

(i) participation in a prepaid or group legal service plan operated by an
organization not owned or directed by the lawyer that uses in-person, live voice
or other real-time contact to solicit memberships or subscriptions for the plan
from persons who are not known to need legal services in a particular matter
covered by the plan.

(ii)
initiation of contact for legal services by a non-profit organization.

(iii) contact of those the lawyer is permitted
under applicable law to seek to join in litigation in the nature of a class
action, if success in asserting rights or defenses of the litigation is
dependent upon the joinder of others; and

(iv) requests by a lawyer or the lawyer’s firm
for referrals from a lawyer referral service operated, sponsored or approved by
a bar association, or cooperation with any other qualified legal assistance
organization.

Ethics Committee Comment

New Hampshire Rule 7.3 differs from the Model
Rule primarily in that:

1. It broadens the scope of potentially regulated
contact to include initiation of any contact with a prospective client for the
purpose of obtaining professional employment. The occurrence of actual
"solicitation" raises evidentiary issues that are not necessary to
reach.

2. It reinstates recorded contact as a regulated
conduct, recognizing the growth of interactive recording technologies that may
cause the prospective client to feel immediate pressure to respond.

3. It allows that motivators other than pecuniary
gain may account for abusive conduct.

4. It assumes that entities, or individuals in a
commercial context, will generally hold a more favorable balance of
sophistication and leverage relative to the lawyer than will individuals acting
outside of a commercial context, and so will generally need less protection
against the “private importuning of the trained advocate.” However, that
balance is assumed to be negated for entities or individuals in a commercial
context if they are known to be in need of legal services in a particular
matter. This negation is intended to prohibit such activities as trolling
through lists of new lawsuits and contacting defendants to solicit
representation in the lawsuit.

5. Initiation of contact on behalf of class
action and non-profit groups enjoy limited exemptions recognizing that such
contact may be constitutionally protected.

6. Participation in a qualified legal services
referral program is exempted.

[1] There is a potential
for abuse inherent in direct in-person, live telephone or real-time electronic
contact by a lawyer with a prospective client known to need legal services.
These forms of contact between a lawyer and a prospective client subject the
layperson to the private importuning of the trained advocate in a direct
interpersonal encounter. The prospective client, who may already feel
overwhelmed by the circumstances giving rise to the need for legal services, may
find it difficult fully to evaluate all available alternatives with reasoned
judgment and appropriate self-interest in the face of the lawyer's presence and
insistence upon being retained immediately. The situation is fraught with the
possibility of undue influence, intimidation, and over-reaching.

[2] This potential for
abuse inherent in direct in-person, live telephone or real-time electronic
solicitation of prospective clients justifies its prohibition, particularly
since lawyer advertising and written and recorded communication permitted under
Rule 7.2 offer alternative means of conveying necessary information to those who
may be in need of legal services. Advertising and written and recorded
communications which may be mailed or autodialed make it possible for a
prospective client to be informed about the need for legal services, and about
the qualifications of available lawyers and law firms, without subjecting the
prospective client to direct in-person, telephone or real-time electronic
persuasion that may overwhelm the client's judgment.

[3] The use of general
advertising and written, recorded or electronic communications to transmit
information from lawyer to prospective client, rather than direct in-person,
live telephone or real-time electronic contact, will help to assure that the
information flows cleanly as well as freely. The contents of advertisements and
communications permitted under Rule 7.2 can be permanently recorded so that they
cannot be disputed and may be shared with others who know the lawyer. This
potential for informal review is itself likely to help guard against statements
and claims that might constitute false and misleading communications, in
violation of Rule 7.1. The contents of direct in-person, live telephone or
real-time electronic conversations between a lawyer and a prospective client can
be disputed and may not be subject to third-party scrutiny. Consequently, they
are much more likely to approach (and occasionally cross) the dividing line
between accurate representations and those that are false and misleading.

[4] There is far less
likelihood that a lawyer would engage in abusive practices against an individual
who is a former client, or with whom the lawyer has close personal or family
relationship, or in situations in which the lawyer is motivated by
considerations other than the lawyer's pecuniary gain. Nor is there a serious
potential for abuse when the person contacted is a lawyer. Consequently, the
general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not
applicable in those situations. Also, paragraph (a) is not intended to prohibit
a lawyer from participating in constitutionally protected activities of public
or charitable legal- service organizations or bona fide political, social,
civic, fraternal, employee or trade organizations whose purposes include
providing or recommending legal services to its members or beneficiaries.

[5] But even permitted
forms of solicitation can be abused. Thus, any solicitation which contains
information which is false or misleading within the meaning of Rule 7.1, which
involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or
which involves contact with a prospective client who has made known to the
lawyer a desire not to be solicited by the lawyer within the meaning of Rule
7.3(b)(1) is prohibited. Moreover, if after sending a letter or other
communication to a client as permitted by Rule 7.2 the lawyer receives no
response, any further effort to communicate with the prospective client may
violate the provisions of Rule 7.3(b).

[6] This Rule is not
intended to prohibit a lawyer from contacting representatives of organizations
or groups that may be interested in establishing a group or prepaid legal plan
for their members, insureds, beneficiaries or other third parties for the
purpose of informing such entities of the availability of and details concerning
the plan or arrangement which the lawyer or lawyer's firm is willing to offer.
This form of communication is not directed to a prospective client. Rather, it
is usually addressed to an individual acting in a fiduciary capacity seeking a
supplier of legal services for others who may, if they choose, become
prospective clients of the lawyer. Under these circumstances, the activity which
the lawyer undertakes in communicating with such representatives and the type of
information transmitted to the individual are functionally similar to and serve
the same purpose as advertising permitted under Rule 7.2.

[7] The requirement in
Rule 7.3(c) that certain communications be marked "Advertising
Material" does not apply to communications sent in response to requests of
potential clients or their spokespersons or sponsors. General announcements by
lawyers, including changes in personnel or office location, do not constitute
communications soliciting professional employment from a client known to be in
need of legal services within the meaning of this Rule.

[8] Paragraph (d) of this
Rule permits a lawyer to participate with an organization which uses personal
contact to solicit members for its group or prepaid legal service plan, provided
that the personal contact is not undertaken by any lawyer who would be a
provider of legal services through the plan. The organization must not be owned
by or directed (whether as manager or otherwise) by any lawyer or law firm that
participates in the plan. For example, paragraph (d) would not permit a lawyer
to create an organization controlled directly or indirectly by the lawyer and
use the organization for the in-person or telephone solicitation of legal
employment of the lawyer through memberships in the plan or otherwise. The
communication permitted by these organizations also must not be directed to a
person known to need legal services in a particular matter, but is to be
designed to inform potential plan members generally of another means of
affordable legal services. Lawyers who participate in a legal service plan must
reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2
and 7.3(b). See 8.4(a).